Court of Appeals held to have erred in denying petitioner's
alternative motion for an evidentiary hearing in the District Court
to determine whether he was prejudiced by monitoring where it had
granted his codefendant, following this Court's remand in
Levine v. United States, 383 U. S. 265, a
new trial based on the Government's disclosure that the FBI after
the indictment had monitored conversations between the codefendant
and the latter's attorney.
Certiorari granted; 376 F.2d 993, vacated and remanded.
PER CURIAM.
The petition for certiorari is granted. Petitioner's conviction
is vacated and the case is remanded to the District Court for
further proceedings consistent with this opinion.
In proceedings before the Court of Appeals pursuant to our
previous remand,
Levine v. United States, 383 U.
S. 265, the Court of Appeals granted petitioner's
codefendant Levine a new trial based upon a disclosure by the
Government that, after the return of the indictment, agents of the
Federal Bureau of Investigation monitored conversations between
Levine and Levine's attorney. But the Court of Appeals denied
petitioner's motion for the same relief or, alternatively, for a
remand to the District Court for an evidentiary hearing to
determine
Page 389 U. S. 19
whether he was prejudiced by the monitoring; the Court of
Appeals stated, however, that the motion was denied "without
prejudice to such application by him to the District Court as may
be appropriate." In the circumstances of this case, and in light of
the acknowledgment of the Solicitor General in his brief in
opposition that "the F.B.I. logs pertaining to the monitored
conversations" are available, we think the Court of Appeals erred
in denying petitioner's alternative motion for an evidentiary
hearing in the District Court. We therefore vacate petitioner's
conviction and remand to the District Court with direction to
afford petitioner such an evidentiary hearing. Depending upon its
findings, the District Court will either reinstate the conviction
or order a new trial, as may be appropriate.
See United States
v. Wade, 388 U. S. 218,
388 U. S.
242.
Vacated and remanded.
MR. JUSTICE BLACK dissents.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.